Criminal Matters Amendment Bill [B20-2015]: briefing on essential infrastructure theft/tampering bill

Meeting report

Ms Ina Botha, DoJCD Principal State Law Advisor, presented statistics to provide background for the Criminal Matters Amendment Bill [B20-2015]. The cost of replacing stolen metal in April 2015 was R13.6 million, this only related to theft from Eskom, Telkom and Transnet. It did not include other entities such as municipalities. In April 2015 179 metric tons was stolen, while in March 2015 it was 173 metric tons. The international average spot price for copper was $6342 in April 2015 and $6026 in March 2015. The amount stolen is related to the spot price. South Africa’s exports of waste copper products was $7.2 million in March 2015, while in January 2015 it was $3.4 million and in August 2014 it was $7 million. While South Africa has only 2% of global copper reserves, yet it is the largest exporter of copper to China and India. The loss to the economy is between R5 and R7 billion per annum and this is an on-going problem with a drastic increase since 2008/09. The concern which parastatals, such as Eskom, have is that only once the stolen cables are replaced, can essential maintenance be done.

Ms Botha said the level of essential infrastructure-related crimes in South Africa is unacceptably high. This essential infrastructure is intended to provide basic services to the public. Further, the absence of essential services is not the only problem as there is a risk to the safety of members of the public due to the impact on communication and transportation. Such crimes also have a negative impact on the South African economy, society and infrastructure. It is a concern that these offences are becoming increasing more organised and is perpetrated by armed and dangerous criminal groups. The Bill is therefore intended to build safer communities by addressing the threat and damage caused to essential infrastructure through metal theft. Further, it seeks to protect the public investment made in infrastructure to meet economic growth targets.

Ms Botha explained that the Bill changes the laws relating to bail, minimum sentences and creates a new offence of tampering with, damage to or destruction of essential infrastructure. The Bill seeks to amend the Criminal Procedure Act (CPA) provisions on bail, the Criminal Law Amendment Act 1997 which regulates minimum sentences and creates the new offence. Persons out on bail often attempt to delay criminal proceedings for as long as possible, which sees the loss of evidence and disappearance of witnesses. Therefore, it is important that with these offences the opportunity to do so is minimised.

Ms Botha said clause 1 contains three definitions: “basic services”, “essential infrastructure” and “tamper”. The purpose of the first two definitions is to make it clear that the provisions of the Bill are applicable to both private and public owned infrastructure providing or distributing basic services such as electricity, transport, water and communications. The definition of “tamper” was included, to distinguish this act from damaging property, because it is believed that not all interference with infrastructure will necessarily constitute damage.

Ms Botha said clause 2 seeks to amend sections 59 and 59A of the CPA which makes it possible for the police, prosecution and the court to grant bail to persons in custody. If the court is tasked with handling the bail application, then this is done under section 60 of the CPA. The amendment will remove the discretion for police officers or prosecutors to grant bail for these offences. This will not remove the discretion for theft more generally and only relates to theft regarding infrastructure. The aim is to send out the message about the seriousness of the crime.

Ms Botha said clause 3 creates the new offence. It criminalises the unlawful and intentional tampering with, damaging or destruction of essential infrastructure. It provides for a severe penalty of imprisonment not exceeding 30 years, which also intends to emphasise the seriousness of the offence. In terms of the common law a person can be charged for maliciously damaging property and this is seen as a petty crime. However, in these instances the damage is to essential infrastructure which provides important services to the public.

Ms Botha said clause 4 amends Schedule 5 to the CPA which regulates the granting of bail. It is necessary for the court to deal with this, because there are proper mechanisms in place for the court to decide whether the accused warrants release on bail. There are two possibilities for guiding the decision of the court on bail: one being that the accused is entitled to bail and the state must prove that it is not in the interests of justice for the accused to be released on bail. The second possibility regarding charges listed in Schedule 5 to the CPA, which creates a form of a reverse onus, which requires the accused to convince the court, through evidence, that it is in the interests of justice for them to be released. Clause 4 aims to ensure that the accused under this new offence will be charged with a Schedule 5 offence, meaning that the onus will not be on the state to prove that they should be denied bail. Likewise, further offences have been added to the Second-Hand Goods Act: carrying on of a business as a scrap metal dealer without being registered, failure to apply for registration for all premises of such a business, failure to record the particulars when acquiring or disposing of scrap metal, failure to report to SAPS items suspected to be stolen or tampered with or to refrain from continuing with the transaction; possession of apparatus used for recycling any controlled metal without being registered or the acquisition or disposal or possession of cable having a controlled metal of which the cover has been burnt without being able to provide a reasonable explanation and failure to report the matter to SAPS. All these offences carry a maximum penalty of 10 years. The offences relating to the ITA and Second-Hand Goods Act are limited to offences involving essential infrastructure.

Ms Botha said the crimes which the Bill seeks to have included in Schedule 5 of the CPA include offences under the Prevention of Organised Crime Act (POCA). Specifically offences under section 2 of POCA including racketeering, related to the proceeds of unlawful activities under sections 4-6 and criminal gang activity under section 9. She noted that the Bill seeks to deal with essential infrastructure-related offences, however this amendment relating to POCA is the only one which does not have a limitation to essential infrastructure. This was done because of indications from the National Prosecuting Authority (NPA) that the insertion of these offences into Schedule 5 was long overdue, because of the seriousness of these offences. Recently the Minister of Justice and Correctional Services was asked whether he was prepared to consider changing the laws on bail regarding rhino poaching. The inclusion of the POCA offences in Schedule 5 would mean that dealers in poached rhino horns would also be subject to the reverse onus and would have to prove the interests of justice warrant their release.

Ms Botha said the second set of offences to be included in Schedule 5 refer to section 54(1) of the International Trade Administration Act (ITA) which relate to a failure to comply with: a notice prescribing the goods that may not be imported or exported to or from the Republic; a condition stated in an import or export control permit or rebate certificate; a directive given to the importer/exporter to provide information relating to the import or export of goods; or an interim or final order made under the ITA. Further offences to be included are those which relate to section 21(1) (l)-(o) of the Second-Hand Goods Act which include the following: carrying on of a business as a scrap metal dealer without being registered, failure to apply from registration for all premises from which such a business will be carried out, failure to record the required particulars when acquiring or disposing of scrap metal, failure to report to the SAPS items suspected to be stolen or tampered with in order to conceal the identity of the item or to refrain from continuing with the transaction; and possession of any apparatus that can be used for the recycling of any controlled metal without being registered or the acquisition or disposal or possession of any cable consisting f controlled metal of which the cover has been burnt without being able to provide a reasonable explanation and failure to report the matter to SAPS. All these offences carry a maximum penalty of 10 years and are therefore serious in nature. The offences relating to the ITA and Second-Hand Goods Act are limited to offences involving essential infrastructure. The inclusion of these offences in Schedule 5 of the CPA will ensure that the reverse onus relating to bail also applies to dealers in scrap metal and agents involved in exports.

Ms Botha said offence of theft involving essential infrastructure is also to be included in Schedule 5 of the CPA, if it is alleged that the theft causes interference with a basic service rendered to the public; or caused damage to essential infrastructure; or was committed by persons in positions of trust and for whom it may be easy to tamper with evidence, namely law enforcement officers under section 58(1), a security officer, an employee, a contract worker or was committed by a group of people acting with a common purpose. This would cover essential infrastructure related offences committed by individuals stealing small amounts of metal, because the impact of such petty or subsistence thieving can have a significant negative social impact. Further, Schedule 5 of the CPA as it stands includes certain types of theft specifically where the amount involved is greater than R500000, the amount involved is R100000 but is committed by a group of persons or syndicate in furtherance of a common purpose or conspiracy, or if the offence is committed by a law enforcement officer and the amount involved is more than R10000.

Ms Botha said contraventions of section 36 of the General Law Amendment Act, 1955 are also proposed for inclusion under Schedule 5 which deals with the inability of a person to give an account of the possession of goods suspected of being stolen. Contraventions of section 37 of the same Act which deals with the receipt of stolen property without reasonable cause, only where it is alleged that essential infrastructure is involved. This intends to cover instances where perpetrators cannot be charged with theft, because it is not known who has stolen the property, where the property in question was stolen from and who the owner is thereof.

Ms Botha said lastly, the offence created under clause 3 will also be included in Schedule 5 of the CPA.

Ms Botha said clause 5 seeks to amend section 51of the Criminal Law Amendment Act, which prescribes the minimum period of imprisonment which must be imposed by the courts for first, second and subsequent offenders convicted of offences listed in Schedule 2 of the Act. Section 51 provides for different periods of imprisonment for offences listed in Parts I, II, III and IV of Schedule 2. The respective periods are: life; 15, 20 or 25 years imprisonment; 10, 15 or 20 years imprisonment; 5,7 or 10 years imprisonment. Clause 5 inserts a new Part V into Schedule 2 which makes provision for prescribed minimum sentences ranging from three to seven years. It should be noted that under section 51, a court may depart from the prescribed minimum sentences if substantial and compelling circumstances exist which justify the imposition of a lesser sentence.

Ms Botha said clause 6 inserts in Part II of Schedule 2 of the Criminal Law Amendment Act offences similar to the offences which are to be inserted into Schedule 5 of the CPA. This will mean that the minimum sentences to be imposed will be in the range of 10, 15 or 20 years imprisonment, depending on the convicted person’s previous convictions. The offences under section 9 of POCA dealing with criminal gang activity are not to be included in Schedule 2, since the penalties prescribed for these offences range from three to eight years imprisonment. Theft involving essential infrastructure is also to be listed in Schedule 2 where it causes interference with a basic service rendered to the public; or causes damage to essential infrastructure; or was committed by persons in positions of trust.

Ms Botha the offence created in clause 3, is also to be listed under Schedule 2, because the high levels of infrastructure related offences result in the disruption of basic services negatively affecting the public’s wellbeing, giving rise to service-related discontent and losses to the economy. The proposed sentences signify the seriousness of the offences and the intent to safeguard the interests of society by signalling to the courts that the imposition of harsher sentences must be considered.

Ms Botha said to ensure that the minimum sentences ranging from five to 10 years imprisonment can be imposed on dealers in second-hand scrap metal and agents, where essential infrastructure related offences are involved, the offences referred to in section 54(1) of the ITA and section 32(1)(a-d) and (k), in so far as they relate to section 21(1)(l-o) of the Second-Hand Goods Act. These will be inserted into Part IV of Schedule 2 through clause 7 of the Bill.

Ms Botha said clause 8 inserts the new Part V into the Schedule 2 to cover the offences referred to under sections 36 and 37 of the General Law Amendment Act and theft involving essential infrastructure not covered in Part II of that Schedule. This will lead to these being covered by minimum sentences of three to seven years. Overall, the minimum sentence for any essential infrastructure related crime will be three years.

Ms Botha said clause 9 contains the short title and commencement date. A commencement provision was felt necessary so that directives and instructions issued by the heads of relevant institutions including SAPS, the NPA and judiciary can be changed.

Discussion
The Chairperson wondered whether the first problem would be an inability to enforce the existing laws. As it is said that armed groups are responsible for these crimes, he was reminded of the police having complained that they are afraid to intervene in illegal mining, because the miners are armed. This amendment to the law does not seem to be addressing the threat to the people who are supposed to be enforcing the law. Further, will criminals even care about the changes in the law or will they carry on with their business. In some countries there are offences such as economic sabotage which deal with similar acts. Are these threats to infrastructure not tantamount to threatening the existence of the state, because if the communities are dissatisfied they may rebel against government saying that it cannot provide services. Has the Department of Justice and Constitutional Development (DoJCD) applied its mind to the situation as a whole and have the people been included in the law making process, because if they do not know about the laws how will they aid in enforcement. For example, the Memorandum on the Objects indicated that the parties consulted were parastatals such as Eskom and Telkom, but it does not include communities where there are structures such as community policing forums. How have the communities been involved, because there is a risk that state institutions are simply talking to themselves.

Ms G Breytenbach (DA) said she had great sympathy with trying to regulate this offence, having been a victim herself several times. However, would it not be more effective to target the dealers in scrap metal, rather than the individual stealing copper cables. Further, it is difficult to catch the individuals responsible because they operate late at night. However, with the dealers there seems to be a form of a conspiracy, because every time there is a raid by police they have been forewarned. And where one would reasonably expect to find stolen copper to be found, there is nothing, or nothing is reported found. The problem seems to be more of cooperation between the dealers and the police. Although she understood the impulse to go after the thief, it may be more effective to target those buying and selling the stolen metal. She felt this would be a quicker win, although she had no suggestions on how to do this.

Mr S Swart (ACDP) said he also shares the view on the seriousness of the offence, because to him it is certainly economic sabotage. Having only referred to statistics on the three parastatals, if the cost to municipalities were included the cost would be huge. He asked to what degree are these offences being elevated above or to the level of the most serious crimes such as rape and murder. He had not had the time to make this comparison, because the criminal justice system is viewed as a whole and one ought to be wary of elevating these offences above other serious crimes. Would the same bail provisions and minimum sentences apply to essential infrastructure-related crimes as to murder and other serious crimes? Essentially, is this crime not being elevated above other common law offences?

Mr B Bongo (ANC) said the matter before the Committee is long overdue and needs to be addressed, because the theft of cables around the country amounts to serious amounts of money. Further, it has led to the employment of many security guards which adds to the cost. Further, where the perpetrators are apprehended then the minimum sentences and seriousness with which the crimes are treated leads to criminals getting off essentially “scot-free”. Therefore, the sooner the matter is dealt with the better. It has been seen that criminals are now beginning to steal taps in rural areas and townships. It is also becoming a problem that during service delivery protests, infrastructure is damaged and this needs to be catered for as well. Another important aspect is to have a broader consultation, particularly regarding bail, because the Committee deals with the Department of Correctional Services and has knowledge of the challenges with remand detainees. Therefore, a balance needs to be struck between dealing with these crimes and the constraints within the criminal justice system. Personally he felt this was becoming a fashionable crime, yet the response in front of courts seems to be soft. He also wanted to commend the Department for a well categorised and drafted presentation.

The Chairperson said there can be no doubt that the matter is overdue, but it remains important that the community is taken along for the ride. A people centred approach to criminal justice is required to find solutions. He was concerned that scrap metal dealers operate in broad daylight without licences and this contributes to encouraging people to commit these crimes. He agreed that the matter was urgent, but if it is dealt with in isolation it will not solve the totality of the problem, lest there be a good law which does not achieve the purpose.

Ms M Mothapo (ANC) said she agrees with Mr Bongo’s view that this legislation is long overdue. She had also experienced the phenomenon referred to by Mr Bongo of taps being stolen. She had experienced an incident where the tap tops of an entire village were stolen, including those of the clinic. There were women in the labour ward of that clinic giving birth and the nurses had no water to take care of these women. This was a serious situation, because people’s rights are being compromised. Perhaps the police should be trained in this proposed legislation, because up until now they have not been able to properly investigate the common law offence of malicious damage to property. Unless this is done the offence which is being created may be fruitless, as there is no capacity to properly investigate the crime. Further, she asked for clarification on the mention of petty and subsistence thieves in this arena.

Ms Botha commented that the amendments before the Committee presently are not the end of the efforts to deal with these problems. There is also a committee chaired by SAPS, called the NAT-Joints where matters such as illegal mining and dealing in ferrous and non-ferrous metals, because the phenomenon of stealing railway lines has arisen. This is the first of a few amendments which will come before the Committee and this one was fast-tracked, because it is felt that it could have good results. To explain the mention of petty thieves and address Ms Breytenbach’s concerns, based on the information available to the DOJCD the problem is that there are large numbers of people who perpetrate relatively small crimes, but the cumulative impact of these crimes is far greater than the individual crimes. From the theft of cables to the value of R1 000, there are repercussions such as hospitals not having electricity and people dying can arise. As much as the amendments try to look at the scrap metal dealers and exporters, there are other punitive measures which can be used against these people. For example their licences could be revoked. While the additional offences in the Second-Hand Goods Act may come to be used, the phenomenon also includes many petty thieves perpetrating small crimes. In addition the economic cost of the country having to replace these cables is far greater. If a small piece of railway line is stolen, the implication is that goods will not arrive on time and Transnet will be charged penalties. The size of the crime may be small, but the consequences are important. This law would not deal with taps stolen from one’s garden, but it would cover instances which fall within the definition of “essential infrastructure”. She would think that in many circumstances the theft of taps may fall within this definition. A further problem is that if these individuals are given bail too soon, then it will never be known whether they are part of a larger syndicate. It may appear on first contact with the police that it is an individual responsible, but it may later transpire that the individual is working for a syndicate.

On economic sabotage, Ms Botha replied that numerous meetings were attended where this issue was discussed. The problem with the “sabotage” aspect is the political motivation aspect and this is not necessarily present in the proposed offences. On the involvement of communities and whether perpetrators will either know or be deterred the NAT-Joints and other such committees have identified this as a key issue. In the action plan and preparatory documents produced by NAT-Joints informing the community and their involvement was identified as key. Therefore, it is not only legislative interventions which are being considered.

On damage during service delivery protests, she said the new offence involving essential infrastructure under clause 3 will be cover such situations as well. On the concern that the police will have to face well-armed and violent syndicates, the present Bill will not solve that problem and is something which can perhaps be taken to the principles within the DOJCD.

On focussing on the dealers, it is true that if the market for the goods is taken away then there will be no problem. However, it is not the licensed dealers who buy the stolen metal. There are illegal “bucket-shops” and they will buy stolen metal from people. Such instances will not be able to be covered by the Second-Hand Goods Act, because the dealers had never been registered. It is a very difficult issue and it must be noted that the individual thieves cause a lot of damage as well. On the comparison between the new offence and the common law offences such as murder, if one looks at schedule 5 crimes like theft, fraud and forgery under a certain value are already included. In part II of Schedule 2 in the General Law Amendment Act, there are offences relating to exchange control, extortion, fraud or forgery. These are linked to certain amounts such as R500 000 and R10 000 if committed by a law enforcement officer. The matter has been considered, is however difficult to draw that comparison. Further, there is a precedent of including theft in Schedule 2 and Schedule 5 in instances where it does not have as such broadly felt circumstances.

The Chairperson said he did not hear anyone having a problem with the desirability of the amendments and the Committee should move forward. The Department must be conscious of the fact that the situation being faced requires social mobilisation. If there can be an international conference to discuss the transformation of the judiciary, why can there not be a conference which involves ordinary victims of these crimes. Particularly, as these crimes can have serious implications lead to loss of life. The Committee should move forward, but keep in mind that justice requires social mobilisation, because if the victims are aware of the magnitude of the problem then they will assist the law enforcement officers.

Mr Swart said the process should proceed and advertisements for public submissions should go out as soon as possible.

The Chairperson then declared the meeting adjourned.